Xerion Advanced Battery Corp. v. Certa Vandalia, L.L.C.

[Cite as Xerion Advanced Battery Corp. v. Certa Vandalia, L.L.C., 2026-Ohio-1307.]


                               IN THE COURT OF APPEALS OF OHIO
                                  SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

 XERION ADVANCED BATTERY                                :
 CORP. ET AL.                                           :    C.A. No. 30553
                                                        :
       Appellees                                        :    Trial Court Case No. 2023 CV 05544
                                                        :
 v.                                                     :    (Civil Appeal from Common Pleas
                                                        :    Court)
 CERTA VANDALIA LLC                                     :
                                                        :    FINAL JUDGMENT ENTRY &
       Appellant                                        :    OPINION

                                                ...........

        Pursuant to the opinion of this court rendered on April 10, 2026, the judgment of the

trial court is affirmed.

        Costs to be paid as stated in App.R. 24.

        Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately

serve notice of this judgment upon all parties and make a note in the docket of the service.

Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified

copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note

the service on the appellate docket.


                                       For the court,




                                       CHRISTOPHER B. EPLEY, JUDGE

LEWIS, P.J., concurs.

TUCKER, J., dissents.
                                     OPINION
                              MONTGOMERY C.A. No. 30553


JEFFREY M. NYE, Attorney for Appellant
MATTHEW M. SUELLENTROP, JAMES H. GREER, DAVID C. GREER, and KAYLIN R.
JARECKI, Attorneys for Appellee


EPLEY, J.

       {¶ 1} Certa Vandalia, LLC (“Certa”), appeals from a judgment of the Montgomery

County Common Pleas Court on a claim for declaratory judgment by Xerion Advanced

Battery Corp. and Northwoods Blvd., LLC (collectively, “Northwoods”). Certa asserts that

the trial court erred when it determined that Northwoods did not materially breach the terms

of the parties’ purchase and sale agreement (“PSA”), denied its motion for summary

judgment against Northwoods, and granted summary judgment in favor of Northwoods. For

the following reasons, the trial court’s judgment is affirmed.

                              I. Facts and Procedural History

       {¶ 2} On August 19, 2019, Northwoods and Certa entered into the PSA for the lease

and sale of a commercial warehouse building located at 250 Northwoods Boulevard in

Vandalia, Ohio. Northwoods was to pay monthly rent of $45,000 due on the first of each

month. Pursuant to the PSA, any rent payments not received by the fifth day of the month

were subject to a $2,000 cure payment plus 18% interest. The terms of the PSA allowed

Northwoods to make a cure payment for any late rent payment within thirty calendar days of

the first day of the month that was past due. Northwoods acknowledges that it did not make

its August 2020 monthly rent payment until August 28, 2020, and no cure payment was

made. Certa did not declare a default or demand the cure payment.

       {¶ 3} In June 2021, Northwoods made its monthly rent payment on June 9, 2021, and

it was received by Certa on June 10, 2021. Certa then sent a notice of default of lease to

                                               2
Northwoods, stating that Northwoods was in default and demanding the cure payment by

July 1, 2021. Northwoods contends that it made the cure payment on July 1, 2021, but Certa

did not receive the payment until after that date.

       {¶ 4} On November 17, 2021, Certa sent another notice of default of lease to

Northwoods, alleging default for failure to obtain occupancy permits. Certa noticed a cure

period that expired December 17, 2021. Certa did not pursue the default, and the parties

continued to perform under the PSA.

       {¶ 5} In August 2023, Northwoods made its monthly rent payment on August 8, 2023.

Certa did not send a notice of default, and Northwoods made its September 2023 rent

payment on September 1, 2023.

       {¶ 6} On September 4, 2023, Certa sent a notice of default and termination of lease

to Northwoods, citing nonpayment of the $2,168.62 cure payment for August 2023, which

stated that the lease was terminated and that Northwoods had forfeited all monies paid to

date under the terms of the PSA. Northwoods sent the cure payment to Certa on

September 5, 2023. Certa returned the September 1, 2023 rent payment and refused to

accept any additional rent payments.

       {¶ 7} Northwoods sought a declaratory judgment from the trial court that it was not in

default of the PSA, that it had not materially breached the PSA, and that the PSA would

remain in full force and effect. Alternatively, Northwoods sought monetary damages for

breach of contract, promissory estoppel, and unjust enrichment. On December 11, 2023,

Certa filed an answer and counterclaim, asserting claims for breach of contract, breach of

guaranty, quiet title, and declaratory judgment. At Northwoods’ request, a magistrate

granted a preliminary injunction to maintain the status quo during the pendency of the action.




                                              3
       {¶ 8} Northwoods moved for summary judgment on January 11, 2024, asserting that

it did not commit a material breach of the PSA and that Certa did not suffer any damages

because of the alleged breach. Regarding Certa’s claim that Northwoods’ payment of its

August 2023 rent three days past due constituted a material breach of the PSA, Northwoods

argued that the PSA “clearly regards [Northwoods’] alleged breach as non-material because

the prescribed remedy for [Northwoods’] breach was an administrative late fee.” Northwoods

took issue with Certa’s interpretation of the PSA that “an event of Default occurs upon either

of the following events: non-payment of ‘Rent’ within the Cure Period, or, separately, non-

payment of the ‘Cure Payment’ within the ‘Cure Period’ defined in §4.7.” Rather, Northwoods

argued that although non-payment of rent is considered a material breach due to its impact

on the fundamental rights of the parties, failure to make the cure payment has no impact on

the fundamental rights of the parties, which is why the PSA designates the cure payment

merely as an “administrative late fee.” Northwoods further argued that to constitute a

material breach, the non-payment of rent must be ongoing and uncured, and that to have

the option to cure, the rent must be delinquent. Northwoods asserted that because it had

paid the August 2023 rent, it was no longer past due and there was no default.

       {¶ 9} Northwoods further maintained that it could not have been in default for failure

to cure because Certa did not provide written notice as required under §4.7 of the PSA.

Northwoods maintained that once the rent was paid, Certa was required to provide written

notice to Northwoods of the lack of cure payment. Once Certa provided that notice on

September 4, 2023, Northwoods had thirty days to cure. Northwoods asserted that it

submitted the cure payment immediately and therefore Certa had no basis under the PSA

to terminate the lease and seek forfeiture of Northwoods’ interest in the property.




                                              4
       {¶ 10} On February 29, 2024, Certa filed its motion for summary judgment against

Northwoods. Certa emphasized the inclusion of the statement that “time is of the essence”

in the PSA with regard to the payment of rent. It argued that, “[w]hen time is of the essence,

any delay in performance is generally viewed as a material breach.” Certa contended that

under the terms of the PSA, the August 2023 rent payment was late because it was due no

later than August 5 and was not paid until August 8. Further, Certa argued that Northwoods

was required to make any cure payment within thirty days of the first day of the month that

the rent was past due, meaning no later than August 30, 2023. Accordingly, Certa

maintained that the cure payment submitted on September 4, 2023 was also untimely and

constituted a material breach.

       {¶ 11} With respect to the issue of notice, Certa referred to language in the PSA that

“in the event of non-payment of Rent, no notice to [Northwoods] is required before such non-

payment is considered a Default.” It interpreted this language to mean that “a breach for

failure to pay Rent by the first of the month and pay the Cure Payment within the Cure Period

under Section 17.1.1 does not require any notice.” Certa also addressed Northwoods’

assertion that Certa’s conduct would result in a forfeiture, noting that the defaulting tenant

receives the right to sell the property and recoup its investment. Certa stated that this is a

benefit to Northwoods. Certa requested that the trial court overrule Northwoods’ motion for

summary judgment and grant judgment in Certa’s favor as a matter of law with respect to its

counterclaims.

       {¶ 12} The trial court heard oral arguments from the parties regarding the motions for

summary judgment on June 13, 2025, and issued a decision on July 10, 2025. The trial court

acknowledged that the relevant inquiry at the heart of this dispute is “whether Certa was

required to provide written notice prior to declaring a default based upon [Northwoods’]


                                              5
failure to remit the cure payment within the cure period.” The trial court disagreed with

Certa’s interpretation of §17.1.1 of the PSA that it was not required to provide notice to

Northwoods before declaring a default for failure to make the cure payment. Instead, the trial

court found that the PSA was ambiguous with respect to this issue. Due to this ambiguity,

the trial court looked to the PSA as a whole, as well as the parties’ prior conduct and course

of performance.

       {¶ 13} The trial court found that although §17.1.1 provides that no notice is required

before Certa can declare a default for non-payment of rent, this section does not address

whether the non-payment of a cure payment may constitute a default without notice. When

it considered the parties’ course of performance, the trial court referenced the August 2020

rent payment, which was twenty-eight days past due, for which Certa did not issue notice of

default or request a cure payment, as well as the June 2021 rent payment, for which Certa

issued a written notice to Northwoods advising of its obligation to remit the cure payment.

       {¶ 14} The trial court held that based upon the ambiguity of the plain language of the

PSA and the parties’ past course of conduct, it was reasonable to interpret the PSA as

requiring Certa to provide written notice to Northwoods that it was exercising its right to

receipt of the cure payment. It further noted that Northwoods’ failure to timely submit the

cure payment for the August 2023 rent payment was the result of “confusion created by the

ambiguous notice provisions of the contract, combined with Certa’s inconsistent

enforcement of the notice and cure provision.”

       {¶ 15} Therefore, the trial court held that Northwoods was entitled to a declaratory

judgment that it is not in default of the PSA; it had not materially breached the PSA; the PSA

had not been terminated and remained in full force and effect; and Certa was estopped from

asserting that the PSA was terminated due to Northwoods’ failure to timely remit the cure


                                              6
payment for August 2023. The trial court also granted judgment in favor of Northwoods as

to most of Certa’s counterclaims. However, as to Northwoods’ claim for breach of contract

and Certa’s counterclaim seeking declaratory judgment, the trial court determined that there

was a genuine issue of material fact as to whether Certa complied with §18 of the PSA by

notifying Northwoods of its alleged default. Finally, the trial court overruled Certa’s objections

to the magistrate’s decision granting a preliminary injunction. The trial court found that its

decision was final and appealable because it issued a declaratory judgment that set forth its

interpretation of the PSA.

       {¶ 16} On August 25, 2025, following the filing of this appeal, this Court issued an

order stating that the trial court’s decision was not final and appealable to the extent that it

overruled Certa’s objections to the magistrate’s decision regarding the preliminary

injunction. We ordered Certa to “show cause why the scope of this court’s review of the

decision should not be narrowed to the remainder of the judgment which, for example,

resolved the parties’ competing summary judgment motions.” Certa responded to the show

cause order conceding that the trial court’s denial of its objections to the magistrate’s

decision was interlocutory in nature. Therefore, we determined that our show cause order

was not satisfied and stated that we would not review the trial court’s denial of Certa’s

objection to the magistrate’s decision.

                                     II. Appellate Review

       {¶ 17} In its assignment of error, Certa asserts that the trial court erred by denying

Certa’s motion for summary judgment and granting summary judgment in favor of

Northwoods. We review the trial court’s ruling on a summary judgment motion de novo.

Martcheva v. Dayton Bd. of Edn., 2021-Ohio-3524, ¶ 35 (2d Dist.).




                                                7
       {¶ 18} “The burden of demonstrating that no genuine issues exist as to any material

fact falls upon the moving party requesting a summary judgment.” Harless v. Willis Day

Warehousing Co., Inc., 54 Ohio St.2d 64, 66 (1978). Once the moving party has satisfied its

burden of showing that there is no genuine issue of material fact, the burden shifts to the

nonmoving party to set forth specific facts showing a genuine issue for trial. Dresher v. Burt,

75 Ohio St.3d 280, 293 (1996). The nonmoving party cannot rely on the mere allegations or

denials in the pleadings but must provide evidence setting forth specific facts showing that

there is a genuine issue of material fact for trial. Civ.R. 56(E). Accord Geloff v. R.C. Hemm’s

Glass Shops, Inc., 2021-Ohio-394, ¶ 14 (2d Dist.). When the standard is met, summary

judgment must be awarded as a matter of law.

       {¶ 19} “‘The cardinal purpose for judicial examination of any written instrument is to

ascertain and give effect to the intent of the parties.’” PNC Bank, N.A. v. Springboro Med.

Arts, Inc., 2015-Ohio-3386, ¶ 16 (2d Dist.), quoting Foster Wheeler Enviresponse, Inc. v.

Franklin Cty. Convention Facilities Auth., 78 Ohio St.3d 353, 361 (1997). “‘The intent of the

parties to a contract is presumed to reside in the language they chose to employ in the

agreement.’” Id., quoting Kelly v. Med. Life Ins. Co., 31 Ohio St.3d 130 (1987), paragraph

one of the syllabus. “‘Under such circumstances, a court may not go beyond the plain

language of the agreement to determine the parties’ rights and obligations, and it may not

consider parole [sic] evidence of the parties’ intentions.’” (Bracketed text in original.) Id.,

quoting SFJV 2005, L.L.C. v. Ream, 2010-Ohio-1615, ¶ 22 (2d Dist.).

       {¶ 20} “A contract is generally defined as a promise, or set of promises, actionable

upon breach.” (Cleaned up.) PNC Bank at ¶ 22. “Essential elements of a contract include an

offer, acceptance, contractual capacity, consideration (the bargained for legal benefit and/or

detriment), a manifestation of mutual assent and legality of object and consideration.”


                                              8
(Cleaned up.) Id. A meeting of the minds as to the essential terms of the contract is also

required in order for the contract to be enforceable. Id. “‘A meeting of the minds occurs if “a

reasonable person would find that the parties manifested a present intention to be bound by

the agreement.”’” Id., quoting Champion Gym & Fitness, Inc. v. Crotty, 2008-Ohio-5642, ¶ 12

(2d Dist.), quoting Zelina v. Hillyer, 2005-Ohio-5803, ¶ 12 (9th Dist.). “‘And to be enforceable,

“the contract must be definite and certain.”’” Id., quoting Rayess v. Educational Comm. for

Foreign Med. Graduates, 2012-Ohio-5676, ¶ 19.

       {¶ 21} “‘Contractual language is “ambiguous” only where its meaning cannot be

determined from the four corners of the agreement or where the language is susceptible of

two or more reasonable interpretations.’” PNC Bank at ¶ 30, quoting United States Fid. &

Guar. Co. v. St. Elizabeth Med. Ctr., 129 Ohio App.3d 45, 55 (2d Dist. 1998). “‘If

an ambiguity exists in a contract, then it is proper for a court to consider “extrinsic evidence,”

i.e., evidence outside the four corners of the contract, in determining the parties’ intent.’” Id.,

quoting United States Fid. & Guar. at 55-56. “Such extrinsic evidence may include (1) the

circumstances surrounding the parties at the time the contract was made, (2) the objectives

the parties intended to accomplish by entering into the contract, and (3) any acts by the

parties that demonstrate the construction they gave to their agreement.” United States Fid.

& Guar. at 56. “‘Courts may not, however, use extrinsic evidence to create an ambiguity.

Rather, the ambiguity must be patent; that is, apparent on the face of the contract.’” PNC

Bank at ¶ 30, quoting Schachner v. Blue Cross & Blue Shield of Ohio, 77 F.3d 889, 893

(6th Cir. 1996).

       {¶ 22} Here, the PSA includes the following provisions regarding default by

Northwoods:




                                                9
Section 17.1 Events of Default. The occurrence of any of the following will be

deemed to be a breach by Tenant of its obligations under this Agreement

(each, a “Default”).

       Section 17.1.1 Failure to Pay. If Tenant fails to deliver any payment of

       Rent to Landlord on or before the first day of the month and fails to pay

       the Cure Payment within the Cure Period as set forth in Section 4.7

       above, time being of the essence (in event of non-payment of Rent, no

       notice to Tenant is required before such non-payment is considered a

       Default);

              ...

       Section 17.1.3 Failure to Perform. If Tenant fails in the prompt and full

       performance of provision [sic] of this Agreement and such Default

       continues for thirty (30) days following written notice from Landlord to

       Tenant or for a reasonable period of time if thirty (30) days is not

       sufficient time to repair, remedy, or correct such Default.

              ...

Section 17.2 Remedies after Tenant Default: Upon the occurrence of any of

the foregoing events of Default that continue beyond any applicable notice and

Cure Period, and providing that [various additional requirements have been

met], Tenant shall have the right to market and sell the Property . . . .

{¶ 23} With respect to late payments, Section 4.7 of the PSA states:

To compensate Landlord for administrative costs, a late fee of Two Thousand

Dollars ($2,000.00), along with interest on rents and fees at 18% per annum

(1.5% per month, but not to exceed the interest allowed by law in the State of


                                       10
       Ohio for transactions of this type) (“Cure Payment”) shall be added to all Rent

       payments past due by five (5) calendar days. If Tenant fails to pay the Rent as

       and when due, Tenant has the right to cure the breach once every twelve (12)

       month time period but Landlord must receive both the Rent as well as the Cure

       Payment within thirty (30) calendar days of the first day of the month that is

       past due, time being of the essence . . . .

       {¶ 24} For our analysis, we first look to whether the plain language of the PSA is

ambiguous. Although Certa contends that it was not required to send notice to Northwoods

prior to declaring default for failure to timely pay the cure payment, the relevant sections of

the PSA are unclear. Section 17.1.1 clearly states that no notice is required before the non-

payment of rent is considered a default. However, Section 17.1.3 contemplates a situation

where Northwoods is in default, and that default continues for thirty days “following written

notice from Landlord to Tenant.” (Emphasis added). Accordingly, there are two reasonable

interpretations of these sections of the PSA and of whether Certa was required to give notice

to Northwoods notice regarding the cure payment. In addition, the language regarding the

cure period is ambiguous. Although Section 4.7 requires that the late rent payment and cure

payment must be made within thirty days of the first day of the month that is past due,

Section 17.1.3 states that default for non-payment or non-performance occurs when the

default continues for thirty days “following written notice from Landlord to Tenant.” These

provisions indicate that the thirty-day cure period does not begin on the first day of the month

rent is due, but thirty days following notification by Certa of the breach and failure to remit

the cure payment. Because of this ambiguity, it is appropriate and necessary to consider

extrinsic evidence to determine the parties’ intent.




                                              11
       {¶ 25} The most instructive piece of extrinsic evidence in this matter is the prior

conduct of the parties. There is no dispute that Northwoods made late rent payments on

multiple occasions before the one at issue here. In August 2020, its rent payment was late

by twenty-eight days, and no cure payment was made. In June 2021, Certa did not receive

the rent payment from Northwoods until June 10, after which Certa notified Northwoods of

the default and demanded the cure payment. Similarly, on November 17, 2021, Certa sent

a notice of default to Northwoods for failure to obtain occupancy permits, but it did not

ultimately pursue the default.

       {¶ 26} Ohio courts have determined that “if the vendor acquiesces in the payment of

any of the earlier installments after the time fixed and thus lulls purchaser into the belief that

prompt payment will not be insisted upon, he should, if he desires to insist upon a strict

performance by the purchaser as to future installments, give him notice to that effect.”

(Cleaned up.) Hegg v. Sigle, 14 Ohio Law Abs. 456, 459 (7th Dist. 1933). Based on the

ambiguity in the language of the PSA itself and the parties’ varying and inconsistent

responses to multiple previous events of default, it is apparent that Certa should have

provided notice to Northwoods that it was required to make the cure payment and should

have allowed thirty days from the date of that notice for Northwoods to cure any default.

There was no genuine issue of material fact that Certa failed to provide any such notice.

Therefore, as a matter of law, Northwoods did not breach the PSA.

       {¶ 27} Additionally, when considering the impact of Certa’s attempted termination of

the PSA, it appears that an unequitable forfeiture would result. It is well-settled that “[e]quity

abhors a forfeiture and will only decree it when such relief is clearly required.” Whitmore v.

Meenach, 33 N.E.2d 408, 410 (2d Dist. 1940). “Where the breach is compensable in money

a tender of payment of the amount due will ordinarily be deemed sufficient reason to avoid


                                               12
the forfeiture.” Id. Although Certa would like to declare Northwoods in default over the

approximately $2,000 cure payment, we cannot ignore the years-long pattern of

performance and past cooperation of the parties under the PSA. Notably, Northwoods has

already paid approximately $3,000,000 under the PSA in rent payments as well as a down

payment in anticipation of ultimately purchasing the property. Other than the late cure

payment, there is no evidence of damages to Certa that could not be remedied by its

acceptance of Northwoods’ late rent and cure payment, and Northwoods has expressed its

desire to continue operating under the terms of the PSA.

       {¶ 28} Based on the foregoing, the PSA is ambiguous with respect to the requirement

of notice for non-payment of the cure payment, and the parties’ prior conduct with respect

to events of default demonstrates that Northwoods did not breach the PSA. Certa’s

interpretation of the PSA would result in the unequitable forfeiture of Northwoods’ interest in

the property, allowing it to terminate the PSA over $2,000 after years of cooperation between

the parties and Northwoods’ investment of millions of dollars in its performance under the

PSA. Although Certa contends that Northwoods would be able to attempt to sell the property,

this would require additional expenditures and loss on the part of Northwoods. Therefore,

we conclude that the trial court did not err in granting Northwoods’ motion for summary

judgment against Certa and denying Certa’s motion for summary judgment against

Northwoods.

       {¶ 29} Certa’s assignment of error is overruled.

                                           III. Conclusion

       {¶ 30} The judgment of the trial court is affirmed.

                                       .............

LEWIS, P.J., concurs.


                                              13
TUCKER, J., dissents:

       {¶ 31} I conclude that, together, PSA Sections 17.1, 17.1.1, and 4.7 unambiguously

provide that a late rent payment (any payment not received on or before the first day of the

month) placed Northwoods, without notice being required, into default, with time being of the

essence. The PSA sections further unambiguously state that Northwoods, once every

twelve months, can cure a default by making a “cure payment” as set forth in Section 4.7,

but both the rent and cure payments had to be received by Certa within thirty days of the

first day of the month that was past due, again time being of the essence.

       {¶ 32} Thus, in my view, PSA Section 17.1.1 only, and explicitly, defines and

regulates a contractual default triggered by a late rent payment. Stated somewhat differently,

Section 17.1.1 is a stand-alone provision not tethered to Section 17.1.3’s default notice

requirement, which concerns contractual breaches other than the late payment of rent.

These conclusions, and thus the contract’s meaning, can be determined “from the four

corners of the [contract],” as its provisions “[are not] susceptible of two or more reasonable

interpretations.” PNC Bank, 2015-Ohio-3386, at ¶ 30 (2d Dist.), quoting United States Fid.

& Guar., 129 Ohio App.3d at 55.

       {¶ 33} Based on these conclusions, I dissent from the majority opinion’s conclusion

that Section 17.1.3’s notice requirement creates an ambiguity allowing consideration of

extrinsic evidence to determine the parties’ intent. And, of course, I further dissent from the

majority opinion’s ultimate conclusion that the extrinsic evidence establishes that

Northwoods did not breach the contract.

       {¶ 34} Certa’s assignment of error contends only that the trial court erred by granting

summary judgment to Northwoods. Since I conclude the trial court did so err, I would remand

the case to the trial court for further proceedings.


                                               14